First, the NSA is an intelligence agency, and intelligence agencies collect intelligence. The NSA collects a huge amount of data. It spies on other countries and their leaders. It tries to make sense of the material it collects using data-analytic techniques. It breaks encryption systems that its potential targets use to protect their communications. It develops relationships with private companies that can provide it data. And it engages in activity that is illegal in the countries against which it operates.
As we used to say in grade school, “Duh!” That’s why we have a signals intelligence agency.
Critics of the agency, at home and abroad, trot out many of these facts as damning indictments. Brazil and Mexico and our European allies are outraged—or pretend to be—that we spy on them. Our domestic conversation is laced with fear of the sheer size of NSA collection, as though data volume is what makes Big Brother big. But the criticism is silly. Of course, the agency collects a large volume of material. An intelligence agency is not a think tank or a university. It doesn’t just read newspapers, collect what’s public and analyze what such data say. ”We steal secrets,” former NSA and CIA director Michael Hayden put it in the excellent movie about Wikileaks that used this arresting phrase as its title. This is what spy agencies do. The NSA is good at it—very good at it.
I, for one, think that’s a great thing.
Second, what the agency is actually doing is far less threatening than what people think it is doing. The tone of the conversation about NSA activity is so over-the-top that the agency’s actual activity gets lost in the story. . . .
Third, while a lot of people aren’t interested in the details, those details really matter. At the time of the last document release, Lawfare published a series of detailed posts describing what the released documents actually said (we will do the same with this week’s disclosures). . . .
This brings me to my fourth point: the NSA’s activities are legal. We are not living in the age of COINTELPRO or the Watergate-era intelligence scandals. We are living in an age in which the intelligence activities about which we harbor anxieties take place pursuant to statute and subject to judicial review. . . .
Let me put this point as simply as I can: The NSA can collect a gargantuan quantity of telephone and internet data without violating any statutory or constitutional law. And nearly all of the current debate involves activity that either clearly or arguably falls on the legal side of the line. To the extent that people argue against the legality of what the NSA is doing, they generally arguing that the courts should have ruled other than the way they did. But in our society, that’s not what defines an agency’s legal authority.
In other words, fifth, this is not a scandal but a policy debate. . . .
In November 2011, at FedSoc's Annual Lawyers Convention, Wittes took part in a panel discussion on "The War-on-Terror Government." It was sponsored by the International & National Security Law Practice Group. You can watc a video of the event here.